ORDINANCE NO. 126-15

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ORDINANCE NO.  126-15

AN ORDINANCE AMENDING THE CITY CODE BY ADDING ARTICLES X AND XI TO CHAPTER 26; ESTABLISHING PROCEDURES FOR WRECKER SERVICES PARTICIPATION ON CITY’S ROTATION LOG AND REGULATING NONCONSENSUAL TOWING AND STORAGE OF MOTOR VEHICLES

BE IT ORDAINED by the City Council (the “Council”) of the City of Opelika, Alabama (the “City”) as follows:

Section 1.  Amendment; adding Article X to Chapter 26 of the Code of Ordinances.  That Chapter 26 of the Code of Ordinances of the City of Opelika, Alabama, is hereby amended by adding an article to be numbered X, which said article shall read as follows:

ARTICLE X.  PROCEDURES FOR WRECKER SERVICES PARTICIPATION ON CITY’S ROTATION LOG

Sec. 26-300.  Definitions.

For the purpose of this article, the following terms shall have the meanings ascribed to them unless the context clearly indicates otherwise:

(a) Applicant means the operator of a wrecker service that desires to participate in the rotation log by making application for the same.

(b) Call or dispatch means a request for wrecker services by an operator on the rotation log of the department resulting in an operator being required to perform wrecker services pursuant to the provisions hereof.

(c) Chief of Police shall refer to the chief of the city police department or his/her designee.

(d) City means the City of Opelika or any department thereof.

(e) Department means the Opelika Police Department, its chief or representative.

(f) Large wreckers shall be classified as any of the following types of wreckers: Tandem dual wheel or tandem rear end wreckers, or twin booms with factory rated or tested lifting capacity of 12.5 tons or over per drum and per winch and per winch line, with dual drum capacity, hydraulic or power take-off driven, and shall be equipped with dual rear twin-screw axles, and shall be equipped with quick air couplings for towing vehicles with air brakes, and shall be utilized to tow any vehicle having a gross vehicle weight exceeding 10,000 pounds, or any vehicle having dual rear axles or any tractor-trailer combination.  The wrecker company shall provide documentation of lifting capacity from the factory or qualified testing facility.

(g) Operator means any person, firm or corporation owning or operating a duly licensed wrecker service that is currently listed as an authorized participant on the rotation log, including employees and drivers.

(h) Police officer means any city police officer.

(i) Rotation log means a sequential list, as maintained by the department, of those operators of wrecker services duly qualified and authorized pursuant to the provisions of this article to receive and respond to calls from the department, when the vehicle owner/operator has not or cannot express a preference or consent for such services from a specific operator or towing company. The rotation log may also be used, at the city’s discretion, for wrecker services in regard to city vehicles, although the city reserves the right to request such services from any operator it deems appropriate.

(j) Services or wrecker services means:

(1)  The towing, lifting, righting, winching, removal or storage of a wrecked, damaged or disabled vehicle which is otherwise incapable of self-propulsion away from the scene of an accident or other traffic event; and

(2)  The towing, lifting, righting, winching, removal or storage of a vehicle any time a police officer deems it necessary to protect the public safety and/or personal property by means of a vehicle capable of doing so and meeting the requirements of this article.

(k) Wrecker: In addition to the conventional and accepted meaning, such term includes a vehicle meeting the minimum criteria and standards set forth in this article and utilized to provide wrecker services.

Sec. 26-301. – Purpose.

The purpose of this article is to establish acceptable standards and criteria for the provision of nonconsensual wrecker services to the city in the city’s capacity as a market participant by operators participating on the city’s rotation log; provided, however, nothing herein shall obligate the city to the use of operators on the rotation log as the sole or exclusive means of providing wrecker services to the city and the city reserves the right to contract independently of the provisions of this article for wrecker services for any particular aspect of municipal operation it deems appropriate.

Wrecker services pursuant to the provisions of this article shall be administered by the department through the department’s representative, who shall have authority to promulgate rules and regulations in furtherance and implementation of this article so long as they do not conflict with any provision hereof.

As regards wrecker services to the public, the terms hereof are not intended to and do not relate to the price, route or provision of consensual towing services as preempted by the Interstate Commerce Commission Termination Act (ICCTA) 1975, 49 USC §14501(c)(1). “Consensual towing or wrecker services” are defined as those situations where the vehicle owner expressly requests towing or wrecker services by a specific towing company and enters into a private contract with the towing or wrecker company for services.

Sec. 26-302. – Applications and conditions for participation.

(a)  Written request for participation on the rotation log. Each applicant desiring to be placed on the rotation log shall file a written application with the department’s designated representative.

(b) Copy of rules and regulations. The department’s representative will furnish each such applicant with a copy of the rules and regulations pertaining to the operation of wreckers on the rotation log.

(c)  Investigation of applicant. The department’s representative will conduct an investigation of the applicant and applicant’s wrecker business and determine if the applicant meets all requirements for participation on the rotation log. Applicant must furnish any additional information requested by the department’s representative during the investigation.

(d) Inspection of wreckers and equipment. The applicant shall present and make available for inspection by the department’s representative, all wreckers and equipment that are to be used by the applicant for the provision of wrecker services.

(e) Certificate of insurance. The applicant shall furnish the department representative with a certificate of insurance that indicates the policy numbers, policy period and the amount of coverage as required by this article.

(f) Authorization, placement on list. When the department’s representative is satisfied that the applicant is qualified, he/she will place the applicant on the rotation log and so notify applicant.

(g)  Decal required. A department decal will be placed on operator’s wrecker in the lower right corner of the passenger window to indicate current inspection and eligibility to be on the rotation log.

(h)  Wrecker companies with same owner or majority stockholder considered one company. Two (2) or more wrecker companies with the same owner/operator as the majority stockholder or partner shall be considered one operator and shall be placed only once on the rotation log.

Sec. 26-303.  Operation.

The following conditions shall govern the conduct of operators on the rotation log:

(a)  Police department dispatch necessary, exception. Except for private request for consensual wrecker services by the vehicle owner, no operator shall proceed to the scene without being dispatched to do so by the police department.

(1)  No operator shall solicit business at the scene of an accident.

(2)  All operators and drivers shall at all times conduct themselves and wrecker services in a reasonable and safe manner.

(b)  Obedience to traffic laws. Each wrecker driver shall obey all state and municipal traffic laws when responding to a dispatch for wrecker service.

(c)  Rotation log participation. Participation in the rotation log system shall be considered personal to the operator thereof and shall constitute authorization only to that definite legal entity operating a bona fide wrecker service and shall not be subject to transfer, nor shall the operator sublet, assign or permit the participation by another in any manner of operator’s equipment, wreckers or name on the rotation log. Participation on the rotation log shall not constitute a property interest, but rather is a mere license.

(d) Submission of daytime and nighttime telephone numbers. Each operator shall furnish the police department communications center with one telephone number to be used for dispatches during the day and one telephone number to be used for dispatches during the night. Any changes in the aforementioned telephone numbers shall be immediately transmitted to the police department communications center. No pagers or answering machines are permitted as call out numbers.

(e) Twenty-four-hour service. Each wrecker operator shall maintain and be fully capable of providing twenty-four-hour, seven-day-a-week wrecker service.

(f) Availability. A wrecker operator shall not accept a dispatch for wrecker services from the rotation log unless the operator has a wrecker and the necessary equipment immediately available to perform the requested service.

(g) Response with own wreckers. The wrecker operator shall respond to a dispatch with its own wreckers and shall not send another wrecker service in response to a rotation log dispatch. If it appears to the operator, the city or department representative on the scene, that the operator is not capable to perform the required services or needs assistance, the operator may request that another operator be dispatched. Under such circumstances, the operator may designate the operator to provide assistance, if not the next operator on the log will be dispatched.

(h)  Response while impaired prohibited. No driver of a wrecker shall respond to a dispatch when he or she is under the influence of alcoholic beverages, controlled substances or is otherwise impaired.

(i) Restriction for conviction of crimes. No operator or wrecker driver shall be on the rotation log who has been convicted of a felony or misdemeanor that involves theft, fraud, dishonesty, violence or driving under the influence of alcohol or drugs within the past five (5) years.

(j) Proficiency. All operators and wrecker drivers on the rotation list shall be proficient and competent in the operation of such wrecker.

(k)  Driver’s licenses required. No person shall be an operator or be allowed to operate any wrecker unless such person has a valid Alabama driver’s license and a commercial driver’s license, if required by law, issued by State of Alabama Department of Public Safety.

(l)  Reflective wear required. All wrecker drivers shall wear reflective vests, coats or shirts while on the scene of any dispatch.

(m)  Attendance of hazardous material training sessions required. All wrecker operators and all drivers shall attend hazardous material training sessions as required by the department’s representative.

(n)  Removal of glass, debris, etc. Operators shall remove glass and debris from the scene of a call and apply oil-dry if necessary.

(o)  Notice of acquisition of wrecker. Each operator on the rotation log shall give notice to the department’s representative of any wrecker acquired subsequent to placement on the rotation log. The department’s representative will inspect the wrecker to determine if it meets all the criteria that are required by this article.

Sec. 26-304.  Two separate logs are established as follows:

(1) Regular haul log:  This log shall be in effect 24 hours a day, seven days a week for assignment by the police department to tow up to three-quarter-ton vehicles for those persons who have no preference as to the company to use; and

(2)  Large haul log: This log shall be in effect 24 hours a day, seven days a week for assignment by the police department to tow vehicles over three-quarter-ton for those persons who have no preference as to the company to use.

Sec. 26-305.  Standards and requirements

(a)  Number, capacity and wrecker standards. Each operator shall maintain a minimum of three (3) operational wreckers ready for immediate response to a dispatch, which shall be well-maintained and in good condition at all times. All wreckers shall be based at operator’s facility within the corporate limits or police jurisdiction of the city.

(b)  Equipment necessary for all wreckers. Each wrecker shall have on it, at all times, the following equipment and items:

(1) All equipment necessary for the towing vehicle or combination of towing vehicle and towed vehicle must comply with the applicable requirements of 49 C.F.R. §§ 390-399, of the Federal Motor Carrier Rules and Regulations, as the same currently exist or as they may be amended in the future.  Any future amendments of the Federal Motor Carrier Rules and Regulations which results in a conflict with the additional requirements contained in this section shall be resolved in favor of compliance with the Federal Motor Carrier Rules and Regulations.

(2) Certification:  A garage or mechanic licensed to do business in the City, who is not an owner, employee or otherwise connected with any wrecker company regulated by this article, must inspect and issue a certificate upon inspection that all wreckers of the wrecker company are in safe operating condition, the following mechanical functions and systems are in proper working order and each wrecker of the company has the following additional equipment in the vehicle:

(a) Wheels:  Bearings, lugs;

(b)  Tires: Front left and right (no recap) minimum tread depth 5/32; rear left, outside and all drive tires minimum tread depth 4/32;

(c) Brakes:  Master cylinder; fluid level, leaks; wheel cylinder; brake hose and lines; hydrovac and lines; vacuum or air tanks; parking brake; vacuum or air gauge and buzzer or light; brake pedal fade; pedal pads, if factory equipped; adjustment; brakes;

(d) Exhaust system:  Exhaust manifold; exhaust pipe; muffler; tail pipe;

(e) Rear end:  springs, shackles and clamps; leaks;

(f) Clutch and transmission; Adjustment, release;

(g) Body: Seats securely fastened and in good condition; no broken glass in any window, and no broken or cracked glass in any windshield which obstructs the driver’s vision; mirrors, left and right; wipers, windshield washers; horn; fire extinguisher; markings; driver’s and passenger seat belts; flags and flares; sun visor for driver;

(h) Steering: Steering arm; tie rod-ends and drag-link; front springs, shackles and clamps; sector to frame mounting; steering free play;

(i) Most current edition of the Department of Transportation Emergency Response Guide Book.

(3) Each wrecker shall be equipped with factory installed one-ton capacity dual wheels.  Dummy wheels are prohibited.

(4) Each wrecker shall be equipped with a power winch, winch line, and boom with a factory rated lifting capacity, or a tested capacity, of not less than 8,000 pounds single line capability.  At the time of application, the wrecker operator shall provide documentation of lifting capacity from the factory or qualified testing facility.

(5) Appropriate equipment shall be attached to each wrecker in order to prevent any vehicle being hauled or towed from being further damaged by coasting, rocking, swinging, or slamming into the wrecker or any part thereof.

(6) Each wrecker shall have the following standard equipment:  Tow bar; safety chains; operating, fully charged 5-B.C. rated fire extinguisher mounted in an easily accessible location; wrecking bars; brooms; shovel; axe; dolly; at least three reflective road warning devices; a minimum of 20 pounds of oil dry; and a minimum of 100 feet of three-eighths-inch diameter or larger steel cable.

(7) Yellow emergency lights shall be affixed above the top of the cab of the wrecker.  The warning lights shall be visible from a distance of not less than 1,500 feet under normal atmospheric conditions at night. At least one light bar with rotating beacon or strobe light on every end visible from three hundred sixty (360) degrees.  All light systems must be visible for a minimum distance of five hundred (500) feet.  Sirens are prohibited.

(8) The name, address, and telephone number of the wrecker operator shall be permanently affixed to and prominently displayed on both sides of the wrecker, using letters and numerals of a contrasting color than the rest of the vehicle that are clearly visible from a distance of 100 feet.  The lettering used for the operator name shall be at least four inches tall and the lettering and numerals used for the address and telephone number shall be at least two inches tall.

(9) The wrecker company shall not place or imprint on its vehicles, buildings, equipment, clothing, advertisements, or correspondence anything suggesting or implying any official relationship between the wrecker company and the City.  Without limitation, the wrecker company shall not use any colors or paint schemes similar to those used by the police department; decals similar in design to department decals; any logo similar to those employed by the City or any of its departments; or any other language or wording which would cause the general public to believe the wrecker is owned or operated by the City.

(10)  Each wrecker shall be properly equipped with clearance and marker lights and all other equipment as required by law.

(11)  Each wrecker shall be equipped with warning devices, as the same are required by law applicable to trucks.

(12)  Each wrecker shall be equipped with dual rear adjustable floodlights with a minimum of 20,000 candlepower each.

(13)  Two-way communication equipment, other than a citizen band radio, between the wrecker and the wrecker’s dispatch.

(c)  Equipment necessary for large wreckers. In addition to the requirements contained in subsection (b), large wreckers, as defined herein, are required to be equipped with the following additional items and equipment:

(1) Air control valve or an electrical break capability with an electrical break control box for the purpose of providing braking capability for the vehicle or trailer being towed or removed.

(2) Two chock blocks to prevent rolling or slippage of the wrecker.  These chock blocks should have the capability of being secured firmly to the wrecker and should be of a width equal to that of the dual wheels of the wrecker.

(3) A minimum of 200 feet of five-eighths-inch steel cable on multiple drums.

(4) Air brakes constructed to lock the rear wheels automatically upon failure and to supply air to disabled vehicles.

(5) One pair of bolt cutters with a minimum one-half-inch opening.

(6) A minimum total of two operating, fully charged 10-B.C. rated fire extinguishers mounted in easily accessible locations.

(7) External air hookups and hoses.

(8) At least six reflective road warning devices.

(9)  A minimum of 50 pounds of oil dry.

(d) Name, address and telephone number. The name, address and telephone number of the operator shall be permanently affixed and prominently displayed on both doors of each wrecker.

(e)  Current inspection sticker. No operator will be permitted on the rotation log without a current inspection sticker issued by the city police department.

Each wrecker shall have a current city inspection decal visibly displayed on the right corner of the passenger window.

(f)  License required. All operators shall be duly licensed by the city revenue department pursuant to chapter 14 of the city Code and comply with all applicable state, federal and local laws.

Sec. 26-306.  Facilities.

(a)  Each operator shall have space available for the storage of vehicles resulting from rotation log dispatches, either on the site of the operator’s business or within two (2) road miles thereof; provided, however, such requirement shall not apply to operators on the rotation log as of the effective date of this article if they are otherwise in compliance with the provisions herein. Such storage area must be well lighted and with a minimum area of ten thousand (10,000) square feet, enclosed by a six-foot chain link fence or more and a locked gate. This storage area must be suitable for properly accommodating and protecting all motor vehicles and their contents against damage or theft. This minimum space must be used by the operator to store vehicles that are towed as a result of a rotation log dispatch.

(b)  The wrecker company’s principle and primary physical and business location shall be within the corporate limits of the City of Opelika.

(c)  All operators of wrecker services on the rotation log shall reasonably permit, during normal business hours, without charge, the owner or owner’s designated representative of any vehicle stored upon or within the operator’s facilities, to inspect the same, remove items of personal belongings and the vehicle tag therefrom. In addition, the operator shall also reasonably permit and allow, during normal business hours, without charge, insurance agents, adjusters, and/or law enforcement officers to enter, inspect and photograph any such vehicles.

Sec. 26-307.  Records.

(a)  Each operator shall maintain accurate records reflecting all wrecker services performed pursuant to this article. Each record of wrecker service shall include the following information:

(1)  The date and time the operator was contacted and requested to perform the service.

(2)  The name of the person requesting the service.

(3)  The location of the vehicle.

(4)  A description of the towed vehicle, including license tag and identification number.

(5)  The owner or driver of the vehicle, if known.

(6)  The service charge and fees.

(b)  All records required herein must be available during normal business hours for inspection by the city representatives.

(c)  The operator shall maintain the aforementioned records for the current calendar year and the preceding calendar year.

(d)  A record of all abandoned motor vehicles is to be maintained by the wrecker company and any abandoned motor vehicle sold or disposed of by operator shall be in accordance with Alabama Code §§ 32-13-1 through 32-13-8 (1975).

Sec. 26-308.  Insurance.

(a)  Every operator assumes full responsibility and liability for any injury to persons, damage to property, fire or theft resulting from the operator’s negligent acts or omissions.

(b)  Each operator shall maintain a liability insurance policy or policies issued by an insurance company currently authorized to issue policies of insurance covering risks in the state. The aforementioned insurance policy shall protect the public against loss of life, bodily injury to the person and damage to the property and shall name the city and its officers, agents and employees, as additional insureds. The coverage shall be for the following amounts:

(1)  Not less than one hundred thousand dollars ($100,000.00) for bodily injury to any one person.

(2)  Not less than three hundred thousand dollars ($300,000.00) for bodily injury in any one accident.

(3)  Not less than one hundred thousand dollars ($100,000.00) for damage to property.

(4)  Not less than twenty thousand dollars ($20,000.00) in garagekeeper’s legal liability, which must include fire, explosion, theft, riot and civil commotion, vandalism, collision with a deductible no greater than five hundred dollars ($500.00).

(c)  Each policy required herein shall contain an endorsement providing for thirty (30) days’ written notice to the legal department of the city prior to any material change therein or cancellation thereof.

(d)  A copy of the certificate of insurance is to be filed with the legal department of the city.

Sec. 26-309.  Rotation log.

(a)  An operator shall promptly respond to a dispatch and arrive with a wrecker on the scene within thirty (30) minutes under normal driving conditions. If an operator is not capable at the time of dispatch to respond, it shall immediately notify the department’s communication center of this fact. The operator will be passed over for that rotation and the dispatch will go to the next operator on the rotation log.

(b)  When an operator responds to a dispatch, but renders no wrecker services, the operator will not lose its position on the rotation log.

(c)  An operator that has received a dispatch must arrive on the scene with a wrecker within thirty (30) minutes of the dispatch, under normal driving conditions; provided, however, if the operator notifies the city’s communications center of a delay and of a reasonable time of arrival on the scene, the operator may take up to fifteen (15) additional minutes to arrive. If the operator does not arrive on the scene on time or if the public health, safety and welfare necessitate more expeditious action, the police department reserves the right to request the services of the next operator on the rotation log. Under these circumstances, the operator who received the first call will forfeit its position on the rotation log for that turn. Any operator that is late in responding to dispatches for wrecker service without justification may be subject to penalties as provided herein.

(d)  When emergency conditions necessitate, the city reserves the right to request the services of the operator who, in the city’s opinion, is best able to handle the situation and/or can reach the scene most expeditiously, regardless of the operator’s position on the rotation log. If a dispatch is made under these circumstances, the operator making such a response will not forfeit their respective position on the rotation log.

(e)  Upon written request, the police department will furnish an operator with a monthly report of the department’s rotation call-out log.

(f)  The department’s representative has the right to inspect any wrecker or equipment of an operator on the city’s rotation log at any time to ascertain if it is being maintained and all required equipment is on the wrecker and in proper operating order.

(g)  All operators on the rotation log shall have their wreckers and equipment inspected annually by the department’s representative. A current inspection sticker will be issued by the department.

Sec. 26-310.  Penalties.

(a)  Violation of any rule, regulation or provision of this article as it relates to wrecker services for rotation log dispatches may be cause for suspension or removal of the operator from the rotation log. The department representative shall notify the operator in writing of a violation and the applicable penalty.

(1)  Upon receipt of notification, the operator may, within fifteen (15) days thereof, deliver a written request to the department’s representative for a hearing to be held before the city council. The receipt of a written request by the department’s representative for a hearing within the prescribed time shall stay the penalty pending final disposition unless it is determined by the chief of the department that it would endanger public safety to allow said operator to continue on the rotation log.

(2)  A hearing shall be held within fourteen (14) days after the filing of a written request for a hearing before the city council. The department’s representative shall notify the operator of the time, date and place of the hearing. At such public hearing, the operator shall be provided an opportunity to be heard. The city council may hear from city representatives and any others who may have relevant information.

(3)  The city council shall render a decision by resolution within ten (10) days from the date of such hearing. Such resolution shall set forth the decision of the city council and the reasons for the same.

(b)  The department will reinstate to the rotation log a suspended operator upon written application after the period of suspension has elapsed and after the department has determined that such operator is in compliance with all regulations of this article.

Reinstatement to the rotation log by any suspended operator shall be conditioned upon the payment of a reinstatement fee of one thousand dollars ($1,000.00).

(c)  If any violations of the regulations or provisions of this article are deemed by the city representative to be of such a nature as to endanger public safety, the department shall immediately suspend from the rotation log the operator committing such violation, then provide notice pursuant to the provisions of subsection (a) above.

(d)  No applications for reinstatement to the rotation log resulting from violation of these regulations will be considered by a transferee of the suspended operator’s business interest unless such transfer was the result of a bona fide sale of a majority of the assets of the business for a reasonable consideration. All documents demonstrating the same must be provided to the department’s representative.

(e)  Penalties. The following penalties shall be assessed for violations:

First violation: Written warning

Second violation within 12 months: Thirty-day suspension

Third violation within 12 months of 1st: Six month suspension

Fourth violation within 12 months of 2nd: One year suspension

Fifth violation within 12 months of 3rd: Permanent suspension

Enhanced penalties; penalties for violations involving failure to arrive on the scene of a dispatched rotation log call, charging in excess of the rates established herein or any infraction which jeopardizes the safety of the public, depending upon the severity thereof, may be accelerated up to and including permanent removal without following the above progressive penalty steps. There shall be no written warnings for any of such violations and the minimum penalty therefor shall commence with a thirty-day suspension unless accelerated.

Sec. 26-311. – Rates and charges.

The maximum fees for wrecker services provided by any wrecker service operator on the rotation log in regard to services provided as a result of a dispatch shall not exceed the following amounts per wrecker, which include operator, unless otherwise indicated (see note):

A.  Normal service—Two-axle vehicle (10,000 lbs. or less) …..$150.00

B.  Normal service—Two-axle vehicle more than 10,000 lbs., less than 26,000 lbs. …..$175.00

C.  Normal service—Two-axle vehicles, more than 26,000 lbs. …..$275.00

Note: Normal service includes cleaning of debris from roadway, pickup and towing of vehicle to any destination not to exceed ten (10) miles from the scene of the call and disconnect.

D.  Large wrecker rates and charges (Eighteen wheeler, motor home or RV)

1.  Regular HR. Tow-Tractor Only $250.00 + $3.50 per mile (one way)

2.  Regular HR. Tow-Tractor & Trailer $300.00 + $4.00 per mile (one way)

3.  After HR. Tow-Tractor Only $300.00 + $4.00 per mile (one way)

4.  After HR. Tow-Tractor & Trailer $350.00 + $4.50 per mile (one way)

5.  Holiday Tow-Tractor Only $450.00 + $4.50 per mile (one way)

6.  Holiday Tow-Tractor & Trailer $500.00 + $5.00 per mile (one way)

7.  Regular HR. Tow-Motorhome $500.00 + $5.00 per mile (one way)

8.  After HR. Tow-Motorhome $550.00 + $6.00 per mile (one way)

9.  Holiday Tow-Motorhome $550.00 + $7.00 per mile (one way)

10. Accident/Rollover Rates:

(i)  Regular HR—1 Truck/1 Operator $400.00 first hr. & $450.00 each hr. thereafter—extra man @ $107.00 per hr.  each man.

(ii)  After HR—1 Truck/1 Operator $450.00 first hr. & $400.00 each hr. thereafter—extra man @ $160.00 per hr. each man.

(iii)  Holiday—1 Truck/1 Operator $550.00 first hr. & $500.00 each hr. thereafter—extra man @ $214.00 per hr. each man.

E.  Oil dry …..  ncluded in normal service

F.  Righting of two-axle vehicle under 10,000 lbs. …..$50.00

G.  Righting vehicle in excess of 10,000 lbs. or with more than two (2) axles not to exceed 26,000 lbs., per hour …..$150.00

H.  Righting vehicle in excess of 26,000 lbs., per hour …..$275.00

I. Winching two-axle vehicle less than 10,000 lbs., per hour …..$50.00

J.  Winching vehicle in excess of 10,000 lbs., per hour …..$150.00

K.  Winching vehicle in excess of 26,000 lbs., per hour …..$275.00

L.  Righting or lifting vehicle by airbag, per pound lifted …..$0.035

M.  Forklift services shall be at commercial rental rates plus ten (10) percent per hour (not including operator).

N.  No keys to vehicle …..  ncluded in normal services

O.  Vehicle storage rates:

First 24 hours …..No charge

Second 24 hours …..$30.00

Each day thereafter …..$30.00

P.  After hours vehicle release …..$35.00

Notes:

(1)  The rates and charges as established herein do not relate to or regulate consensual wrecker services, being those situations where the vehicle’s owner expressly requests towing or wrecker services by a specific towing company and enters into a private contract with the towing or wrecker company for services.

Section 2.  That Chapter 26 of the Code of Ordinances of the City of Opelika, Alabama, is hereby amended by adding an article to be numbered XI, which said article shall read as follows:

ARTICLE XI.  TOWING AND STORAGE OF MOTOR VEHICLES (Nonconsensual Towing)

Sec. 26-325.  Findings.

The City Council has found that some members of the public and their property have been placed at risk in circumstances where their motor vehicles have been towed without their consent and placed in storage because of a variety of factors including, but not limited to, unfair and predatory towing and pricing practices, inadequate notice of when vehicles are subject to towing, unreasonable prices for towing and storage, and lack of adequate recourse in the event of improper towing or storage, among others. Since these activities involve commercial enterprises utilizing city streets and rights-of-way for private profit and based upon the foregoing, the city council has concluded that the regulations provided for by this chapter are required to protect the public health, safety and welfare generally, and particularly the safety of those members of the public whose motor vehicles have been towed without their consent and stored, as well as the public interest in ensuring that the prices charged for nonconsensual tows occurring in instances when motor vehicles are trespassing on private property are fair and reasonable. This ordinance is enacted and adopted pursuant to section 220 of the State of Alabama Constitution of 1901; Code of Ala. 1975 § 11-49-1 and the exemption provided to a political subdivision of the state as set forth in 49 USCA § 14501(c)(2)(C) which grants to such governing authority the right to regulate the price of for-hire motor vehicle transportation by a tow truck if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.

Sec. 26-326.  Definitions.

(1)  Motor vehicle. Every self-propelled vehicle which is designed for use upon a highway, including trailers and semitrailers designed for use with the vehicles.

(2)  Owner/operator. For the purposes of this section, an owner/operator is defined as a person other than the lienholder, possessing or holding title to a vehicle. The term includes a person entitled to the use and possession of a vehicle which can be subject to the business or commercial interest of another, permission, rental, lease, or security interest in another person or entity.

(3) Repossessor shall mean any person in the business of providing repossession services to others or who performs repossessions on its own behalf, and includes, but is not limited to, officers, managers, agents or employees thereof.

(4)  Storage fee. The compensation payable for the storage of a towed motor vehicle that has been stored at or in a facility owned, operated, leased or used by a tow truck service or any other business entity which owns or operates a tow truck.

(5)  Towing fee. The compensation payable for the towing of a motor vehicle.

(6)  Tow, tows, or towing. The act of removing, by tow truck, a motor vehicle from privately-owned property within the city where it is parked. The preparation, maneuvering, attachment and or loading onto the towing and recovery operator’s tow truck for removal does, for purposes of this chapter, constitute a “tow” or “towing.”

(7)  Towing and recovery operator.

(a)  A person, business or any other entity engaged in the business of (1) removing disabled vehicles, parts of vehicles, their cargoes, and other objects to facilities for repair or safekeeping and (2) restoring to the highway or other location where they either can be operated or removed to other locations for repair or safekeeping (3) vehicles that have come to rest in places where they cannot be operated. The term includes any employee, authorized agent or legal representative of such individual or entity.

(b)  Any person, business or any other entity who in any way advertises, portrays, acts, claims or holds themselves out to be a towing and recovery operator or in any way conveys the impression that they are engaged in services of providing towing and recovery of vehicles shall be deemed to be engaged in towing and recovery services.

(c)  Any business, corporation, individual or any other person or entity who is not engaged in the primary business of towing vehicles but who either owns, rents or utilizes a tow truck, whether licensed by the city or not, for the purpose of removing or towing vehicles from private property, including their own and removing such vehicles to place or places owned, controlled, leased, rented by such individual, business or entity or by agreement with another.

(d)  The term does not, for purposes of this chapter, include a business, individual or any other entity that removes motor vehicles from public streets and other locations, pursuant to a contract with the city or the city’s rotation wrecker program as set forth in article X chapter 26 of the City Code.

(8)  Tow truck. A motor vehicle for hire (1) designed to lift, pull, or carry another vehicle by means of a hoist or other mechanical apparatus and (2) having a manufacturer’s gross vehicle weight rating of at least seven thousand (7,000) pounds. “Tow truck” also includes vehicles designed with a ramp on wheels and a hydraulic lift with a capacity to haul or tow another vehicle, commonly referred to as “rollbacks.”

Sec. 26-327.  Applicability.

This article applies (1) to the towing, by a towing and recovery operator, of motor vehicles from privately-owned property within the city without the consent of the vehicle owner or driver, (2) to the fees that are charged for such towing of vehicles, and (3) to the fees that are charged for the storage and retrieval of such towed vehicles. This article does not apply to the consensual towing of motor vehicles nor from public streets and other locations that is performed pursuant to a contract with the city, or to the storage of such vehicles.

Sec. 26-328.  Compliance with state and municipal licensing requirements.

(a)  All towing and recovery operators and all tow trucks engaged in business in the city shall comply with state and the city licensing requirements imposed by the state and the city, and shall provide evidence of such upon request by any representative of the city authorized to enforce the provisions of this chapter.

(b)  The city representative responsible for the enforcement of the provisions of this article shall be the Opelika Police Department.

Sec. 26-329.  Removal of trespassing motor vehicles.

(a) The owner, operator, or lessee, or authorized agent thereof, of any property, may have any vehicle occupying the property without the permission of its owner, operator, lessee, or authorized agent thereof, removed by towing to a storage facility until reclaimed by the owner or his agent provided the provisions of this chapter are complied with, as well as the following:

(1)  Signs shall be posted and affixed on the property and located in prominent and conspicuous locations so as to provide clear and legible notification that vehicles parked without permission will be towed.

a.  For parking areas connected to a public street, signs shall be placed prominently and conspicuously at such entrance within five (5) feet of the public right-of-way line. If more than one entrance or curb cut exists from the same street frontage, signs may be posted at the farthest distance between the street entrance or curb cut.

b.  For parking areas that are connected to the public right-of-way without intervening curbs or other access barriers and directly in front of or abutting one or more buildings, signs shall be placed at both ends of the parking area and either attached to the building or posted at intervals in the parking area at a distance of fifty (50) feet or less.

c.  For parking areas which do not conform nor meet the configurations described in subsections a. and b., property owners may consult with the Opelika Police Department to determine appropriate locations for signage as described herein.

d.  Signs shall be posted and affixed to buildings on the property and at such locations thereon which clearly, conspicuously and legibly disclose and identify that any such vehicle parked without permission on said property will be towed.

e.  The notice shall also provide the name and current telephone number of the person or firm towing or removing the vehicles, if the property owner, lessor, or person in control of the property has a written contract with a wrecker service.

f.  The sign shall not exceed four (4) square feet in area and must be light reflective. The notice shall clearly indicate, in not less than two-inch-high letters on a contrasting background, that unauthorized vehicles will be towed away at the owner’s expense. The words “tow away zone” shall be included on the sign in not less than four-inch-high letters. For a commercial or business (including shopping center and retail) parking lot or facility, in addition to the words “tow away zone,” the words “no overnight parking” shall be added to the sign in not less than two-inch-high reflective letters.

g.  The sign structure containing the required notices shall be permanently installed with the bottom of the sign not less than four (4) feet above ground level, and be continuously maintained on the property for not less than twenty-four (24) hours prior to the towing or removal of any vehicles.

h.  Where parking for residential or multifamily properties are immediately adjacent to parking for commercial or retail properties where no distinguishing barriers or identification for the respective parking exists, the property owners shall take such reasonable measure to identify each such adjoining parking space as restricted parking for their tenants or clientele.

(2) The foregoing requirement for signs shall not apply on any parcel of property used at the time of removal for one single-family residence or one two-family residence; and provided further, however, that parking spaces parallel to or at an angle to a public street and entered directly from a public street shall be deemed to be providing signs properly when the signs are placed along the sidewalk (or in a similar location when there is no sidewalk) adjacent to the space or row of spaces and there is at least one of the signs required by this chapter within forty feet of each such space.

(3)  The towing and recovery operator performing the tow shall comply with the following:

a.  Authorization of the owner, operator, or lessee of the property from which the vehicle is towed, or the authorized agent thereof. For the purposes of this subsection, “authorized agent” shall not include a representative of the towing and recovery operator.

b.  The tow operator shall receive a signed authorization from the property owner or their agent prior to the towing of the vehicle and the property owner or their agent must also be present when the vehicle is towed.

c.  Prior to performing the tow, the tow operator shall contact the Opelika Police Department and inform the department of the removal of the vehicle providing the Department with the following information if visible and present on the vehicle, vehicle identification number (VIN), license plate number, decal number and year. In addition, the make, model, year, color and location from where the vehicle is towed and the location of where the vehicle is to be towed is also to be provided.

d. The towing and recovery operator, and the owner, operator, or lessee of the property, shall maintain for public inspection at its business offices, and at the property, respectively, copies of all documents which authorized the operator to tow any motor vehicle from the property.

(4)  The owner, operator, lessee or authorized agent of the property shall obtain and retain the following:

a.  Photographs or videos of the vehicle in the location from which the vehicle is being towed;

b.  Photographs or videos of the condition of the vehicle prior to the tow; and

c.  To the extent available, other documentary evidence substantiating the reason for the removal.

(5)  The tow truck used to perform the tow shall include the name, street address, and telephone number of the towing and recovery operator in a conspicuous location on the exterior of the truck.

(b)  This section shall not apply to public safety and public health vehicles or where a vehicle, because of a wreck or other emergency, is parked or left temporarily on the property of another.

Sec. 26-330.  Notice.

(a)  Immediately subsequent to a trespassing vehicle being removed or towed as permitted by this article, notice of this action shall be provided in person or by facsimile by the towing and recovery operator to the Opelika Police Department desk officer or such other officer as may be designated by the police department. Such notice shall include the following information:

(1)  The name of the towing and recovery operator removing vehicle;

(2)  A description of the vehicle towed including year, make, model, color and if visible and present on the vehicle the vehicle identification number (VIN), license plate number, decal number and year;

(3)  The location of trespassing vehicle and the date and time of the tow;

(4)  The location of the storage facility to which the vehicle was towed; and

(5)  The name and address of the individual and/or entity who authorized the tow.

(b)  Failure by a towing and recovery operator to report such tow as required by this section shall constitute a traffic infraction punishable by a fine of not more than one hundred dollars ($100.00). Such failure to report shall limit the amount which may be charged for the storage and safekeeping of the towed vehicle to an amount no greater than that charged for one day of storage and safekeeping.

Sec. 26-331.  Storage facilities.

(a)  All towing and recovery operators engaged in towing vehicles without the consent of their owners shall conspicuously display at their main place of business and at any other storage facilities where towed vehicles may be reclaimed, in locations readily visible to those reclaiming vehicles, signs that clearly and legibly provide the following information:

(1)  A comprehensive list of all their fees for towing, recovery, and storage services as related to the charges allowed by this ordinance. Charges in excess of those posted shall not be collectable from any motor vehicle owner whose vehicle is towed or stored without his consent;

(2)  The maximum fees permitted to be charged by this article;

(3)  That payment may be made by cash, traveler’s check, money order, insurance company check, or debit, credit or charge card;

(4)  That a receipt shall be provided;

(5)  That the vehicle owner shall have the opportunity to inspect the vehicle for damage prior to payment and a tow company or tow truck operator shall not require a vehicle owner to sign any waiver of the owner’s right to receive compensation for damages to the owner’s vehicle as a condition of the vehicle’s release.

(6)  The non-emergency telephone number of the police; and

(7)  The business telephone number of the city official responsible for handling consumer complaints.

(b)  The fees authorized by this article shall be the maximum allowed and an additional fee for use of a debit, credit or charge card, or other form of payment, shall not be permitted.

(c)  Towing and recovery operators shall make change, up to one hundred dollars ($100.00), for those who pay in cash for towing and storage charges applicable to vehicles towed under the provisions of this article.

(d)  Storage facilities to which vehicles towed under the provisions of this article are towed shall provide for the release of any vehicle towed to said facility twenty-four (24) hours a day.

(e)  Storage facilities to which vehicles towed under the provisions of this article are towed shall be located within the city.

(f)  In the event that a vehicle is towed from the city and stored in or released from a location in another locality, the provisions of this article shall apply.

Sec. 26-332.  Receipt required.

At the time a vehicle owner or agent reclaims a towed vehicle, the towing and recovery operator shall provide a written receipt that contains the following information:

(a)  The name and address of the towing and recovery operator;

(b)  The address from which the vehicle was towed;

(c)  The date and time that the vehicle was towed;

(d)  The date and time that the vehicle entered the facility at which it was placed for storage;

(e)  An itemized list of all the fees that are being charged; and

(f)  A signature of an authorized representative of the towing and recovery operator.

In addition, the towing and recovery operator shall provide to the vehicle owner or agent an information sheet or card supplied by the city regarding information about how to file a complaint with the city.

Sec. 26-333.  Fees.

(a)  Charges imposed for the towing, storage, and safekeeping of any vehicle removed, towed, or stored without the consent of its owner shall not be in excess of the maximum charges provided for in this section.

(b)  The maximum fees that may be charged for the towing of motor vehicles and for the storage of such towed vehicles are as follows:

(1)  For the towing of a motor vehicle weighing less than twenty-six thousand (26,000) pounds, the maximum fee shall be one hundred sixty dollars ($160.00).

(2)  For the towing of a motor vehicle weighing more than twenty-six thousand (26,000) pounds, the maximum fee shall be three hundred twenty-five dollars ($325.00).

(3)  For the storage of a towed motor vehicle, the maximum fee for each twenty-four-hour period of storage or portion thereof shall be thirty dollars ($30.00); provided, that no storage fee may be charged for the first twenty-four (24) hours of storage, or any portion thereof, following the arrival of a towed vehicle at the tow operator’s storage facility storage yard. The storage fee shall only apply if the vehicle has been located on the tow operator’s storage yard at the address and location that is subject to the annual inspection by the police department and likewise listed on the tow operator’s business license at its principal place of business for more than twenty-four (24) hours.

(4)  If in the opinion of the tow operator and or its agent, the driver or the operator of the vehicle, whether the owner or agent thereof, appears to be impaired or potentially intoxicated to the extent that they may not be able to safely operate a vehicle, the tow operator and or its agent shall contact the Opelika Police Department and the responding officers shall, upon investigation and observation of the driver, owner, agent of the owner or party seeking the release of the vehicle, determine if the vehicle is to be released to the driver, owner, agent of the owner or party seeking its release. In the event that the officer shall determine in their opinion that the driver, owner, agent of the owner or party seeking the vehicle’s release is impaired to such an extent that they cannot safely operate a vehicle, the vehicle shall not be released and the officer shall document that the tow operator and or its agent complied with the requirements of this article. In such event the tow operator and or its agent may charge the thirty dollar ($30.00) storage fee provided that the vehicle has been stored for longer than twenty-four (24) hours at the storage yard at the address and location that is subject to the annual inspection by the police department and likewise listed on the tow operator’s business license as its principal place of business.

(c)  Except for fees authorized by this article, no other fees or charges shall be imposed during the first twenty-four-hour period.

(d)  If the owner of a motor vehicle or agent thereof is present and capable of removing the vehicle before the towing of said vehicle has transpired, the vehicle shall not be towed and no fee shall be charged. However, if the owner of a motor vehicle or agent thereof is present after the owner’s motor vehicle has been:

(1)  Actually and physically moved and or maneuvered from its parking place by placing a vehicle or vehicles on two (2) or more go jacks, provided that the tow operator has a wrecker or tow truck located and present on scene that can immediately tow each such vehicle or vehicles. It shall be unlawful to place any vehicle or multiple vehicles on go jacks and hold or withhold the vehicle or vehicles from their owner or agent if each vehicle cannot be immediately towed by a tow truck or wrecker present on scene or until a tow truck or wrecker is available to tow them;

(2)  Lifted by tow line or cable;

(3)  Loaded onto the towing and recovery operator’s tow truck;

The maximum fee of one hundred sixty dollars ($160.00) as allowed pursuant to subsection (b)(1) shall apply. However the mere arrival of the tow operator’s truck or vehicle and or employee(s) shall not be considered as acts, circumstances or justification to tow the vehicle. The placement of obstacles either in front or the rear of the vehicle and or blocking the removal of the vehicle with the operator’s tow truck or any other vehicle or blocking the removal of the vehicle by the tow operator, its officers, agents, servants or employees, shall not be considered as acts, circumstances or justification to tow the vehicle and the engagement or use of any such acts shall be unlawful. It shall be unlawful for any tow operator its officers, agents, servants or employees to disable or immobilize any vehicle prior to towing the vehicle.

(e)  No storage fees shall be charged if the tow operator its officers, agents, servants or employees have entered into any agreement with any party to lease or to otherwise use any parcel of property or land for the purpose of towing vehicles to places or locations other than the tow operators storage yard as identified in section (b)(2) in order to temporarily store or park vehicles regardless of the hour of day or night. A tow operator may not use any public right-of-way for the purpose of temporarily storing or parking towed vehicles for the purpose of removing multiple vehicles from locations in an attempt to save time from towing vehicles to the tow operator’s storage yard.

(f)  Any vehicle towed pursuant to this article shall be released by the tow operator within one hour or less when contacted by the owner of any such vehicle towed and payment of the charges due pursuant to this section subject however to the provisions of section (b)(3).

Sec. 26-334.  Manner of payment.

Towing and recovery operators shall accept payment for towing fees, storage fees, retrieval fees and the “in lieu of towing” fee provided for in this chapter in each of the following ways:

(a)  Cash in United States currency;

(b)  Insurance company check;

(c)  Travelers’ checks or money orders payable in United States currency; and

(d)  Any debit, credit or charge card that the towing and recovery operator is authorized by the issuing credit or charge card company to accept, and that is accepted by the towing and recovery operator in the ordinary course of business.

Sec. 26-335.  Records.

(a)  Every towing and recovery operator shall maintain a record of the following information for each motor vehicle that it has towed from a location within the City:

(1)  The date and time that the vehicle was towed;

(2)  The date and time that the vehicle entered the facility at which it was placed for storage;

(3)  The make, model, year, VIN number, and license plate number of the vehicle;

(4)  The address of the property from which the vehicle was removed;

(5)  the name and address of the person and or entity who authorized the tow;

(6)  Video or photographs taken at the time of the tow if provided by the property owner;

(7)  The towing and storage fees actually charged;

(8)  The date and time the vehicle was reclaimed, and by whom; and

(9)  A copy of the receipt provided to the vehicle owner or agent.

(b)  Such record shall be maintained for a period of at least two (2) years from the date of each tow, and shall be made available, during normal business hours, for inspection and copying by any representative of the city authorized to enforce the provisions of this article. In addition, the portion of such log or record pertaining to a particular motor vehicle shall be made available, during normal business hours, for inspection and copying by the owner of the vehicle or the owner’s authorized representative.

Sec. 26-336.  Reports of repossession required.

(a)  Every wrecker who repossesses a motor vehicle within the City limits shall notify the Opelika Police Department within one hour after the repossession is completed.

(b)  At the time of repossession, every wrecker company operator or repossessor who repossesses a motor vehicle within the City limits shall be required to have official paperwork authorizing the repossession of the vehicle on his/her person. The authorizing paperwork should include, at a minimum:  the name of the authorizing entity, the name of the person/entity believed to be in possession of the vehicle, and a description of the vehicle to include tag number and Vehicle Identification Number.

Sec. 26-337.  Conflict with state law.

In the event any provisions of this article shall be in conflict with the codified laws of the state, the codified laws of the state shall be given precedence.

Section 3.  Severability.  If any section, clause, sentence or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then such holding shall in no way affect the validity of the remaining portion of this Ordinance.

Section 4.   Conflict.  All ordinances or parts thereof which are in conflict with the provisions of this Ordinance are hereby repealed in their entirety to the extent of such conflict.

Section 5.  Publication.  The City Clerk of the City of Opelika, Alabama is hereby authorized and directed to cause this Ordinance to be published one (1) time in a newspaper of general circulation published in the City of Opelika, Lee County, Alabama.

ADOPTED AND APPROVED this the 3rd day of November, 2015.

/s/ C. E. “Eddie” Smith, Jr.

PRESIDENT OF THE CITY COUNCIL OF THE

CITY OF OPELIKA, ALABAMA

ATTEST:

/s/ R. G. Shuman

CITY CLERK

TRANSMITTED TO MAYOR on this the 4th day of November, 2015.

/s/ R. G. Shuman CITY CLERK

ACTION BY MAYOR

APPROVED this the 4th day of November, 2015.

/s/ Gary Fuller

MAYOR

ATTEST:

/s/ R. G. Shuman

CITY CLERK

Legal run 11/6/15

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